How to Manage Anti-Discrimination Complaints in NFP Workplace Recruitment

Introduction

Not-for-profit and charity organisations in New South Wales have a legal duty to ensure their recruitment processes are fair and non-discriminatory. Under state and federal laws, including the Anti-Discrimination Act 1977 (NSW) (‘ADA’), it is unlawful to treat potential employees unfavourably based on protected personal attributes.

This article provides essential information for these organisations on their legal obligations, from drafting inclusive job advertisements to managing formal complaints. It covers key aspects of the recruitment process and outlines the procedures for handling grievances internally and through external bodies like Anti-Discrimination NSW.

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Workplace Discrimination in Recruitment for NFP/Charity

Identifying Direct Discrimination & Indirect Discrimination Behaviour

Discrimination in recruitment occurs when a person is treated less favourably because of a personal characteristic protected by law. This behaviour can manifest in two primary forms as follows:

• Direct discrimination: This is often more obvious and involves treating a job applicant unfavourably specifically because they possess a protected attribute. An example of this is refusing to hire a candidate because she is pregnant or promoting a less qualified person over someone with a disability.
• Indirect discrimination: This happens when a seemingly neutral policy, condition, or practice is implemented that disadvantages individuals with a protected attribute. For this to be unlawful, the policy must not be reasonable in the circumstances. For instance, a requirement for a role to be performed full-time in the office, without a reasonable basis, could disadvantage applicants with caring responsibilities.

Recognising Protected Attributes Under NSW Law

Under the ADA, it is unlawful to discriminate against a person in an employment context based on certain personal characteristics, known as protected attributes. Your organisation must ensure its recruitment processes are free from discrimination based on these grounds.

The protected attributes in NSW include:

• Sex: This also covers pregnancy and the capacity to breastfeed.
• Race: This includes a person’s colour, nationality, descent, and ethno-religious origin.
• Age: This covers whether a person is considered too young or too old.
• Marital or relationship status: This includes being single, married, divorced, or in a de facto relationship.
• Disability: This encompasses physical, intellectual, psychiatric, sensory, or learning disabilities, as well as various illnesses.
• Sexual orientation: This means whether a person is heterosexual, homosexual, or bisexual.
• Gender identity: This protects individuals who are transgender.
• Carers’ responsibilities: This relates to obligations to care for or support family members.

While religious belief is not a general protected attribute under the ADA, it is protected in employment under the federal Fair Work Act 2009 (Cth) (‘FW Act’). Therefore, it is essential for employers in NSW to consider their obligations under both state and federal laws.

Legal Obligations & Exemptions for Charities in NSW

Complying with State & Federal Anti-Discrimination Legislation

Charities and not-for-profits in New South Wales must comply with anti-discrimination laws at both the state and federal levels. The primary state legislation is the ADA. Furthermore, this operates alongside a framework of federal laws that also protect employees and job applicants from discrimination.

Key federal legislation that applies to NSW employers includes:

• Racial Discrimination Act 1975 (Cth) (‘RDA’).
• Sex Discrimination Act 1984 (Cth) (‘SDA’).
• Disability Discrimination Act 1992 (Cth) (‘DDA’).
• Age Discrimination Act 2004 (Cth) (‘ADA 2004’).
• FW Act.

Under federal law, employers have a positive duty to take reasonable and proportionate measures to eliminate discrimination. This duty specifically covers discrimination based on sex, sexual and sex-based harassment, hostile work environments, and victimisation.

While the ADA does not contain an equivalent express positive duty, organisations in NSW must still adhere to the federal requirements to minimise the risk of complaints.

Applying Lawful Exceptions & Religious Exemptions

While anti-discrimination laws are broad, there are specific circumstances where treating someone differently may not be unlawful. Discrimination in employment can be permissible if it is based on:

• A genuine occupational requirement: for example, it may be lawful to hire a person of a particular sex for a role where it is necessary to preserve decency or privacy.
• Inherent requirements: if a person cannot meet the essential demands of a role, even with reasonable adjustments.

Religious bodies established to promote a particular religion have a specific exemption that applies during recruitment. These organisations can require that applicants adhere to certain religious beliefs as a condition of appointment. However, this exemption is limited to the hiring process. Once a person is employed, the organisation must generally comply with anti-discrimination laws regarding their employment conditions and termination.

Charities may also act in accordance with the terms of specific deeds or wills that provide charitable benefits, a specialised area often involving the establishment of charitable trusts and foundations. Section 55 of the ADA allows a charity to comply with the specific terms of such an instrument, even if it results in preferential treatment. An example of this is a university scholarship established by a will exclusively for women surveyors.

For situations not covered by these exceptions, an organisation can apply to the NSW Anti-Discrimination Board for a formal exemption from the law for a period of up to 10 years. Ultimately, the Board will assess whether the exemption is necessary and reasonable before granting it.

Best Practices to Prevent Discrimination During the Recruitment Process

Drafting Inclusive Job Descriptions & Advertisements

When creating a job description, it is important to focus on the specific requirements of the role. This clarity helps you identify what information is necessary from applicants and avoids seeking details that could be discriminatory. Furthermore, the language used should be clear and easy to read, outlining the duties and skills required for the position.

To attract a diverse pool of applicants and minimise risk, your job advertisements should:

• Focus on skills and abilities: The advertisement should centre on the qualifications and experience needed to perform the job, not on the personal attributes of a candidate.
• Avoid discriminatory language: Phrases that could suggest a preference for a certain age, race, or sex should not be used. For example, an advertisement seeking a ‘mature, experienced professional’ could be seen as discouraging younger applicants.
• Differentiate between criteria: Clearly distinguish between ‘essential’ and ‘desirable’ skills. This helps candidates understand the core requirements of the role.
• Include a diversity statement: Consider adding a statement that encourages people from various backgrounds to apply, such as Aboriginal and Torres Strait Islander peoples or individuals from culturally and linguistically diverse backgrounds.

Conducting Fair Interviews & Lawful Screening Checks

The interview process should provide every applicant with an equal opportunity to demonstrate their suitability for the role. Therefore, it is a best practice to prepare a standard list of questions that relate directly to the job requirements and ask them of all candidates. Ultimately, this ensures consistency and fairness.

During interviews, avoid questions that touch on a candidate’s personal life or protected attributes. For instance, asking a female applicant if she plans to have children is a potentially discriminatory question. Instead, questions should focus on whether the candidate can fulfil the key requirements of the position, such as their ability to travel interstate if the role requires it.

After the interview stage, you may conduct further checks, but these must be lawful and relevant to the position, including:

• Screening Checks: Your organisation may be legally required to conduct certain checks, such as a Working with Children Check for roles involving child-related work, as a critical part of safeguarding the vulnerable in your charity In addition, police checks may also be conducted but should be relevant to the specific role, as it can be unlawful to discriminate based on an irrelevant criminal record.
• Reference Checks: When contacting referees, questions should relate directly to the job requirements and the candidate’s suitability based on the selection criteria.
• Medical or Psychological Tests: These tests should only be used if they are necessary to determine if a person can perform the specific requirements of the job. For example, a medical test might be needed to assess health risks for a role involving heavy lifting, but the results cannot be used to discriminate if the person could perform the job adequately.

How to Manage an Internal Workplace Discrimination Complaint

Establishing Clear Internal Complaint Policies

A written workplace policy is essential for defining unacceptable conduct and outlining a clear grievance procedure, which is a key component of strengthening your charity board processes for better compliance. Specifically, this policy should specify what constitutes discrimination, harassment, and victimisation, while setting the expected standards of behaviour for everyone in the organisation. Furthermore, having a well-documented framework demonstrates that your organisation has taken reasonable steps to prevent unlawful conduct, which can help mitigate vicarious liability.

Your complaints policy should be easily accessible to all workers and even prospective employees. It must clearly explain how an individual can make an internal complaint and who they should approach. Ultimately, dealing with issues internally first can lead to quicker, more effective, and less expensive resolutions for both parties.

Discussing & Handling Employee Grievances Promptly

When a complaint is raised, it is important to handle it promptly and fairly. An effective internal process allows your organisation to address issues directly, reflect on recruitment practices, and reduce the risk of an external complaint.

A structured approach to managing grievances should include the following steps:

• Acknowledge the complaint: Confirm receipt of the grievance with the person who raised it.
• Assess the situation: Evaluate the details of the complaint to understand its seriousness and nature.
• Decide on a course of action: Determine whether the issue can be resolved through an informal discussion, a mediated conversation, or if a formal investigation into the NFP dispute is required.
• Keep detailed records: Document every stage of the process, from the initial complaint to the final resolution.

Addressing Victimisation & Sexual Harassment Complaints

Complaints involving victimisation or sexual harassment require careful and immediate attention. Specifically, victimisation occurs when a person is treated unfavourably because they have made, or intend to make, a discrimination complaint. In addition, sexual harassment is also unlawful and must be addressed seriously.

Under federal law, employers have a positive duty to take reasonable and proportionate measures to eliminate these behaviours. This duty extends to eliminating sex discrimination, sex-based harassment, and conduct that creates a hostile work environment. Fulfilling this duty involves several key actions, including:

• implementing preventative policies;
• providing regular training to staff; and
• ensuring your complaint procedures are effective and responsive.

The External Dispute Process Involving Anti-Discrimination NSW & NCAT

Responding to Complaints Lodged with Anti-Discrimination NSW

If a prospective or current employee believes they have been unlawfully discriminated against, they cannot lodge a complaint directly with the NSW Civil and Administrative Tribunal (NCAT). Under the ADA, the complaint must first be made to Anti-Discrimination NSW.

Once a complaint is lodged, Anti-Discrimination NSW may investigate the matter. A key part of this process is conciliation, which is a private and informal method aimed at resolving the dispute. During conciliation, both parties have the opportunity to discuss the issues and work towards a mutually agreeable outcome, which is often faster and less expensive than a formal hearing.

Furthermore, Anti-Discrimination NSW may decline to take further action on a complaint in certain circumstances.

NCAT Hearings & Potential Legal Orders

If a complaint is not resolved through conciliation with Anti-Discrimination NSW, it may be referred to the NSW Civil and Administrative Tribunal (NCAT) for a formal hearing. The process at NCAT typically involves case conferences to clarify the issues, followed by the preparation of evidence.

The hearing is conducted before a panel of up to three Tribunal Members, and the process generally unfolds as follows:

• Both parties present their evidence, which can include documents and witness statements;
• Witnesses may be cross-examined by the other party; and
• Both sides make their final arguments or submissions after all evidence has been presented.

If NCAT finds that a breach of the ADA has occurred, it can make legally binding orders, which may include:

• Awarding compensation up to $100,000 for any loss or damage suffered;
• Ordering the organisation to stop the discriminatory conduct;
• Requiring the organisation to take specific actions, such as reinstating a dismissed employee; or
• Directing the organisation to publish an apology or a retraction.

Managing Claims Made on Behalf of an Employee

During proceedings at NCAT, your organisation can either represent itself or engage a lawyer or a non-lawyer agent. Legal representatives must file a Notice of Representation with the tribunal. While a lawyer can appear without seeking permission, a non-lawyer agent must ask for leave from the Tribunal Member to represent a party.

Preparing for a hearing involves gathering and submitting evidence to defend the claim. After a failed mediation or during case conferences, NCAT will set a timetable for filing and serving documents.

As the respondent, your organisation will need to provide evidence, which may include:

• Documents relevant to the recruitment process and the complaint; and
• Written statements or affidavits from witnesses you intend to call.

Conclusion

Not-for-profit organisations in NSW must adhere to state and federal laws to ensure their recruitment processes are fair and free from discrimination. This involves implementing equitable practices at every stage, from drafting inclusive job advertisements and conducting lawful interviews to properly managing any internal or external complaints.

To ensure your organisation’s recruitment practices are compliant and support a fair workplace, contact our experienced not-for-profit lawyers at LawBridge today. We provide clear guidance to help you meet your legal obligations and confidently manage your hiring processes.

Frequently Asked Questions